Newshore Nominees Pty Ltd as trustee for the Commercial & Equities Trust v Durban Roodepoort Deep, Limited - [2004] WADC 57

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: NEWSHORE NOMINEES PTY LTD AS TRUSTEE FOR THE COMMERCIAL & EQUITIES TRUST -v- DURBAN ROODEPOORT DEEP, LIMITED [2004] WADC 57

CORAM: FENBURY DCJ

HEARD: 16-18 DECEMBER 2002, 3-6 NOVEMBER 2003

DELIVERED : 31 MARCH 2004

FILE NO/S: CIV 557 of 2001

BETWEEN: NEWSHORE NOMINEES PTY LTD AS TRUSTEE FOR THE COMMERCIAL & EQUITIES TRUST (ACN 067 099 616)
Plaintiff
AND
DURBAN ROODEPOORT DEEP, LIMITED (ARBN 086 277 616)
Defendant

Catchwords:

Contract of services - Whether void for uncertainty - Implied term as to remuneration - Assessment of reasonable rate without evidence - Turns on own facts

Agent's authority - Whether express, implied or ostensible - Turns on own facts

Evidence - Prior consistent affidavit of witness - Evidential weight thereof - Failure to call potentially relevant witnesses - Turns on own facts

Legislation:

Nil

Result:

Judgment for the plaintiff in the sum of $46,532.91

Representation:

Counsel:

Plaintiff: Mr P G Clifford
Defendant: Mr G M Abbott, then Mr D Martino

Solicitors:

Plaintiff: Richard O'Shannassy & Co
Defendant: Allens Arthur Robinson

Case(s) referred to in judgment(s):

British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197
Equiticorp Finance Ltd (in liq) v Bank of New Zealand (1993) 32 NSWLR 50
Freeman & Lockyer (a firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 1 QB 480
Jones v Sutherland Shire Council (1979) 2 NSWLR 206
Meehan v Jones (1982) 149 CLR 571
Upper Hunter District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429
Walker v Walker (1937) 57 CLR 630

Case(s) also cited:

Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
Brenner v First Artists' Management Pty Ltd [1993] 2 VR 221
Byrnes Corp Pty Ltd v Tarman Pty Ltd t/as Express Scaffolding and Rigging [1999] NSWSC 175
Camelot Resources Ltd v MacDonald (1994) 14 ACSR 437
Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co (1975) 133 CLR 72
Entwells Pty Ltd v National & General Insurance Co Ltd (1991) 6 WAR 68
Foamlite Australia Pty Ltd v Desmond Frederick Campbell and Skilled Engineering Pty Ltd, unreported; FCt SCt of WA; BC8901065; 31 May 1989
Hall Chadwick Corp Finance (WA) Pty Ltd v Axiom Properties Ltd [2002] WASC 179
Northside Developments Pty Ltd v Registrar General (1990) 170 CLR 146
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221
Pinson v Lloyds & National Provincial Foreign Bank Ltd [1941] 2 KB 72
Re Haycraft Gold Production & Mining Co [1900] 2 Ch 230
Re Qintex Ltd (No 2) (1990) 2 ACSR 470
Re Tummon Investments Pty Ltd (in liq) (1993) 11 ACSR 637
Ritek Incorporation v Nece Pty Ltd (1997) 24 ACSR 38
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323

TABLE OF CONTENTS

The plaintiff's claim
The Service Agreement – Exhibit A119
The interim invoice – Exhibit A380/381
The invoice the subject of this action – Exhibit A224
The previous consultancy services ‑ $247,000 paid. Invoice Exhibit A91
The two invoices for $63,500 Exhibits 1, 2 and 3
The payment of $250,000 to Vista Blue Limited
Mr Roger Bryer's evidence
Mr Charles Mostert
Authority – did Charles Mostert have authority to bind the defendant?
Void for uncertainty?
The affidavit of Roger Bryer sworn 10 November 2000 – Exhibit 8
Plaintiff's failure to discover documents relating to the "consultancy agreement" – the $247,000 payment
Failure to call former office holders of the defendant namely Messrs Kebble, Prinsloo, Banfield, etc
Findings on evidence of Bryer as to fees and hours
Rate of remuneration
The hours worked
Assessment of fees due

Expenses

Interest

FENBURY DCJ: The plaintiff is a company that acts as Trustee for the Commercial & Equities Trust which is the vehicle through which Mr Roger Bryer, provides financial consultancy services (referred to hereafter as "Newshore"). Mr Bryer is the Managing Director and Chief Operating Officer of the plaintiff ("Bryer").
The defendant is a substantial mining company incorporated in South Africa (hereinafter referred to as "DRD"). It has been a registered foreign company according to the laws of Western Australia from about 15 February 1999. From the date of its Australian registration DRD's registered office in Australia was at Level 4, South Shore Centre, 83 South Perth Esplanade, South Perth. DRD had a number of directors one of whom was Charles Phillip Mostert whose home address was in Como, Perth ("Mostert"). The Local Agent in Western Australia was Mr John Stratton who lived in Applecross (Exhibit A63‑64).

The plaintiff's claim

Newshore sues on a "partly written, partly oral and partly implied" agreement it asserts was reached with DRD on or about 21 May 2000.
Newshore's claim is that pursuant to that agreement it provided services to DRD over a period of 64 days between 20 May and 30 July 2000. DRD has refused to pay the invoice rendered for those services. Newshore seeks the sum of $238,200 and interest.
The nature of the services provided by Newshore through Bryer are said to be of a highly specialised nature. They involve public relations, lobbying, consulting, networking, facilitating and co‑ordinating. Bryer displayed a gregarious, sociable and affable nature in the witness box. He seems to have put his personality and personal skills to good business use.
Further insight into the nature of the services provided by Newshore through Bryer can be gained from his description of work that he allegedly performed for DRD on previous occasions in 1999 ("the Consultancy Agreement"). The nature of those services involved international financial matters and corporate business dealings for high stakes. Bryer explained the brief he had from DRD related to the need to "maintain the share price" of DRD which meant to engage in activity which would see the share price remain stable in spite of other factors and events occurring which might cause it instability. Bryer at T138 put it as follows:
"Over many, many years I built up extremely good contacts amongst stockbrokers and some fund managers but mainly stock brokers overseas. That rapport has lasted these many years. Fortunately with my explanation which is sometimes put a different way than what you read in the newspaper or the very bland attempt of a quarterly or annual report, I was able to explain that the share market price had a better future than what seemed to be reflected in the annual report. In other words, looking at it from a different perspective I was able to explain that and still am able to explain that fortunately through those contacts because those people had been close to me in financial dealings for nearly 30 years and I was able to be truthful to them and show them a different way of looking at it. That helps maintain a share price, simply because the way that investors work. Its like a horse race. There are so many horses in the field to notice them all would be impossible, but if a particular company has a bright future and can be explained in such a way then it becomes apparent to the buyer who may not have seen that before. Consistently if that is kept up, that promotional affect is kept up, not only is the share price maintained but sometimes it can be increased because of the new interest in the stock."
Against the background of having provided services like those abovementioned Bryer described the discussions that, according to him, formed the preliminary basis of the agreement upon which he sues ("the Service Agreement"). At T149 he said:
"…the first is I was able to be told quite important information and the first is that there was a debt to Rothchilds for an acquisition made by DRD which was somewhat pressing and that what was needed was a cornerstone investor, a new investor to come along, put some money into the company in order to relinquish that debt, number one, and provide stability in the share registry, and the reason for that is there were no, and still is not, any single large shareholder larger than 5%. A cornerstone investor of that nature would stabilise the registry if somebody was to control 15 or even 20% of a company of that size. It would indeed stabilise the register."
Bryer alleges that he worked extremely hard, for long hours and incurred numerous expenses in his efforts to assist DRD to achieve these goals. He contacted his associates, he travelled overseas, he made use of his various contacts around the world.
The way Newshore's claim is formulated was usefully summarised by counsel in an outline of submissions prepared prior to the commencement of the trial. Although counsel spoke to the submissions and provided more detail in his opening, the written submissions provide a fair outline of Newshore's case. In its action on the abovementioned alleged agreement of 21 May 2000 Newshore relies upon the earlier and allegedly similar business dealings it had had with DRD, as a basis for asserting the terms of the agreement upon which it sues. Counsel put it like this:
"Simply put the plaintiff's case is that Mr Mostert, on behalf of the defendant, orally engaged Mr Bryer [the plaintiff] in August 1999 to assist the defendant in maintaining and increasing DRD's share price. Pursuant to that engagement Mr Bryer met with brokers, fund managers, etc in Europe and the USA and reported back to Mr Mostert (both in person and by telephone) between September 1999 and April 2000. The plaintiff rendered an invoice in the amount of $247,000 for Mr Bryer's services in April 2000 for work done in the preceding seven months. The defendant paid that invoice."
"In early May 2000 Mr Mostert asked Mr Bryer to essentially carry out a feasibility study (in the sense of 'sounding out' possible contributors) as to the raising of US$75 million to assist the defendant with the buy‑out/merger of a group of African companies involved in the mining/resources industry. In this regard Mr Bryer travelled to Hong Kong and Singapore. Upon Mr Bryer's return to Perth on 19 May 2000 Mr Mostert contacted Mr Bryer about an extended assignment. Mr Mostert informed Mr Bryer that the defendant was vulnerable to a hostile takeover by a number of companies. Mr Mostert repeated the request of early May 2000, as it was part of the plan to thwart the hostile takeover of the defendant, and added to it a request that Mr Bryer find a "cornerstone investor" who would invest US$40 million in the defendant. It is this engagement that these proceedings relate to. The defendant has not paid the plaintiff for work undertaken by Mr Bryer in that engagement.
In early May 2000 Mr Bryer was concerned that if the defendant was taken over there might be a dispute as to the plaintiff's engagement by the defendant. Accordingly Mr Mostert and Mr Bryer confirmed that the engagement should be recorded in writing. Mr Bryer (on behalf of the plaintiff) signed a document headed 'Service Agreement' on 19 May 2000. Mr Mostert signed that document on behalf of the defendant on 21 May 2000. Because of the history of dealings as set out above between Mr Bryer and Mr Mostert Mr Bryer reasonably understood that Mr Mostert had been mandated by the defendant's Board to sign the document and engaged Mr Bryer to proceed as discussed."

The Service Agreement – Exhibit A119

On 19 May 2000 Bryer on behalf of Newshore and on 21 May 2000 Mostert purportedly on behalf of DRD, described as "Chief Financial Officer" of DRD, signed a document entitled "Service Agreement" (Exhibit A119). This document, described at the time as a "pro forma" was prepared by and at the suggestion of Bryer (T154). It is not said to contain all of the terms of the agreement. It is said to be the "written" part of the agreement. It contains the following terms:
"It is herein agreed that Newshore will provide the company with services and introductions, make arrangements, conduct meetings and carry out initial negotiations for the company.
It is further agreed that Newshore will seek arrangements with appropriate financial parties and/or individuals or institutions in order to construct agreements that give rise to placements of shares and/or underwriting of shares in The Company.
Both parties agree that Newshore will conduct itself on a best endeavour basis.
Notwithstanding the final conclusion of all such negotiations it is agreed herein that The Company will pay to Newshore all of the expenses incurred by Newshore together with fees based on time spent in furthering such negotiations.
Newshore to provide continuous reporting of the progress of each negotiation to management of The Company.
This Agreement is to be for a period of 12 months from the form (sic) the date hereon, or until such time as the objects of this Agreement have been finalised to the satisfaction of the company."
It can be seen that the terminology is vague and open ended as to key areas in which, one might imagine, a large company would be interested. There is no reference at all to how "fees based on time spent" might be calculated. What precisely Newshore agrees to do by reference to the first and second paragraphs is difficult to determine. The fourth paragraph is particularly difficult to construe.
It is not Newshore's case that the agreement allegedly reached with DRD is entirely incorporated in this document; far from it. However, it is surprising that Mostert was prepared to sign such a poorly drafted document on behalf of his employer, DRD. A moment's careful reading would have revealed the obvious vagueness and uncertainty of the terms proposed and set out therein.
Newshore particularised the services provided to DRD between 21 May and early August 2000, in par 14 of the statement of claim as follows:
"Particulars of services provided
(a)Arranged meetings in Hong Kong for 23 May 2000.
(b)Attended meetings in Hong Kong on and following 23 May 2000.
(c)Attend and assist in presentation in Hong Kong to and in the presence of Mostert, John Stratton, Leeming Tee and other executives.
(d)Entered into negotiations with Arthur Dew of Sun Hung Kai Ltd in May, June and July of 2000.
(e)Arranged and attended meetings and conducted negotiations in Sydney in May, June and July of 2000. At, on or about 11 July 2000 in Sydney negotiated with Lee Ming Tee and his associates in the presence of Mike Prinsloo and Mostert of DRD.
Particulars of reports provided to DRD
Bryer reported regularly to Mostert and conducted meetings and negotiations in the presence of Mostert and Prinsloo."
DRD merely denied each and every allegation pleaded in par 14.
DRD sought further and better particulars of, amongst other paragraphs, par 14 of the statement of claim and was met with the following answer:
"The services are adequately described in the 'Particulars of Services Provided' subjoined to par 14 of the statement of claim.
The regular reports referred to under the 'Particulars of Reports Provided to DRD' were given by Bryer (on behalf of the plaintiff) to Mostert over the telephone and during in‑person meetings. The negotiations in the presence of Mostert and Prinsloo are those referred to in par (e) of 'Particulars of Services Provided' subjoined to par 14 of the statement of claim.
In respect of time spent in providing services and providing reports Newshore also relies upon par 15 of the statement of claim."
Paragraph 15 of the statement of claim stated:
"Between 20 May 2000 and 30 July 2000 Newshore spent a total of 64 days working in the provision of the services pursuant to the Services Agreement."
Without going into a detailed analysis of Bryer's evidence on what he did he generally gave evidence that he had carried out his brief as described in the Service Agreement and as directed orally by Mostert. Much complaint was made by counsel for DRD about Bryer's evidence of activities and services provided that went beyond those pleaded. There may have been some merit in counsel's complaints, however given the defence case that no work was done by the plaintiff, and given the lack of prejudice to the defence case and the view I take of the plaintiff's case, I do not think the numerous pleading points need to be further addressed.
It is Newshore's case that in carrying out his brief Bryer attended a meeting in Hong Kong between 22 and 24 May 2000. Bryer had been in Hong Kong only days earlier, but he was initially there on other business. It appears that although his negotiations with Mostert concerning this new assignment may have taken place in Hong Kong, he did not go to Hong Kong on 16 May for that purpose.
In his affidavit sworn in opposition to an application brought in the Supreme Court to set aside a statutory demand, Exhibit 8, at par 27, Bryer made reference to a trip to Hong Kong from Perth between 22 and 24 May 2000. (See Exhibits A125‑129). As I have said there is no doubt he undertook that trip. There is no claim for any earlier Hong Kong trip in that affidavit.
Yet in Exhibit A227, which is Newshore's schedule of alleged expenses the subject of this action, there is clear reference to a claim for expenses for the trip to Hong Kong between 16 May and 20 May. (See Exhibit A113). I make further reference to this below.
Putting that aside, as a generalisation, it appears to be beyond doubt that Bryer did indeed, apart from going to Hong Kong on 22 to 24 May, travel to Sydney on 18 June. (Exhibit A130, 131). It also appears he travelled to Sydney on 22 June. (Exhibit A101‑A107). There is also no doubt Bryer travelled to Sydney on or about 11 July for several days (Exhibits A155, A149‑A153, perhaps A26, A228 and A148). Bryer did indeed go to the places that he says he did, when he did. The airline tickets, boarding passes, invoices, itineries and the like provide convincing proof.
It is also clear that as a result of taking these trips Bryer incurred associated expenses. What is really in dispute is what function he performed whilst he was on these business trips, whether or not he has already been adequately compensated and how reasonable is his claim if he has not.
As I have stated Bryer gave evidence about his activities. He had a convincing sort of presentation and demeanour in the witness box in evidence in chief as indeed did the plaintiff's other witness, Mostert.
It was Bryer's evidence that discussions with Mostert concerning his brief to find a cornerstone investor, etc, occurred whilst they were in Hong Kong conducting other business. He said Mostert agreed to engage Newshore to carry out various tasks but there was a concern about a risk of DRD being taken over by another company. Accordingly, Bryer felt it would be prudent to obtain some form of written agreement, which he drafted himself to protect his interests. (Exhibit A119; p 7 above). He sent that to Mostert on 19 May and Mostert signed it on 21 May 2000.
Bryer's evidence was that there were many oral instructions given to him by Mostert and much of the detail unexpressed in the written service agreement was covered in oral briefing. Thereafter, as a generalisation, Bryer said that he fulfilled his obligations in seeking to obtain a cornerstone investor.
Bryer's evidence was that over a period of some 71 days between 20 May and 30 July, he worked 64 days. He did not produce any written records to substantiate this claim.
Newshore's case was that it was Bryer's usual practice to "charge in the order of $A100,000 per calendar month or A$25,000 per week". (Paragraph 29 Exhibit 8). It was asserted that this equated to an hourly rate of $250 for "a 100 hour week". Bryer asserted that it was common place during this period for him to spend 100 hours or more per week. Given there are only 168 hours in a week this leaves an average of 9.7 hours per day for attending to the necessaries of life including rest.

The interim invoice – Exhibit A380/381

During the alleged term of the contract, Newshore rendered an invoice to DRD that DRD says is relevant and furthermore goes to the issue of Bryer's credit.

DRD raises this matter specifically in its defence at par 25 as

follows:
"Further and in the alternative, if the defendant is liable to pay any sum to the plaintiff (which is expressly denied) the defendant says further that:
(a)On or about 16 May 2000 Mr Mostert caused the defendant to pay the sum of US$20,000 to Mr Bryer on behalf of the plaintiff;
(b)On or about 26 June 2000 the defendant received an invoice dated 20 or 23 June 2000 from the plaintiff in the total sum of US$22,500 of which the payment of US$20,000 referred to in par 21(a) above (sic par 25(a)) was credited in favour of the defendant and US$2,500 was said to be still owing, (the June invoice) for services allegedly performed during the period 10 May 2000 to 4 June 2000, the description of which services were substantially identical or similar to that of the alleged services said to be the subject of the August invoice;
(c)As at 28 June 2000 the Australian dollar equivalent of US$2,500 was A$4,157.51;
(d)On or about 28 June 2000 DRD Australasia Pty Ltd on behalf of the defendant paid the sum of A$4,157.51 to the plaintiff in payment of the outstanding balance of the June invoice; and
(e)The sum payable by the defendant to the plaintiff pursuant to the August invoice (if any which is denied) must be reduced or distinguished by the sum of US$2,500 or such other part of the June invoice which amounts to double charging of the defendant by the plaintiff."

The Newshore invoice referred to in par (b) above was "for work done during the period 10 May 2000 to 4 June 2000 inclusive". (Exhibit A380).
The invoice is in the following terms:
"Liaison with Sun Hung Kai Group Hong Kong and related business; CAM Group and Durban Roodepoort Deep.
Including two trips to Hong Kong within the period.
Arrangements and liaison with various members of Sun Hung Kai Group initially be telephone and by personal representation. Conferences, meetings and discussions in Hong Kong over the period. Introduction of party. Presentations and reviews.
Hotel accommodation, transport, out‑of‑pocket expenses, meals, telephone costs.
Herewith our invoice US$22,500.
Less amount already received by Roger Bryer 16 May 2000 US$20,000. Balance outstanding US$2,500."
Obviously following some query about this invoice, (again, refer to par (b)), Newshore sent another letter to DRD (Exhibit A381) care of Ms Jan Turnbull on 23 June 2000 by way of a "breakdown of costs and fees. Our invoice attached" in the following terms:
"As requested please find attached our breakdown of costs and fees for the month of May 2000 together with copies of relevant receipts and statements.
Hotel accommodation HK$ 9,916…   US$1,685
Transport, meals, entertainment, courier and delivery charges, copying and out‑of‑pocket expenses   US$4,405
Telephone and communication charges relevant      US$6,410
Fees   US$10,000
Total     US$22,500
Less paid  US$20,000
Balance outstanding  US$2,500"
It can be seen that part of the period during which this work was alleged to have been performed is contemporaneous with the alleged period of the contract upon which Newshore now sues. Indeed it overlaps by 15 days.
With respect to the claim for hotel accommodation being HK$9,916 it can be seen that this figure is the sum of two hotel bills incurred by Bryer at the J W Marriott Hotel in Hong Kong for a period from 16 May to 20 May 2000 and 22 May to 24 May 2000. (See Exhibit A227 – Newshore's list of expenses claimed in this trial) and Exhibits A113 and A128 being the hotel bills.
The alleged balance outstanding of US$2,500 equated to about $A4,157.51 at the time. This was paid to Newshore by DRD (see Exhibit 25).
It strongly appears Newshore is claiming for expenses for which it has already been reimbursed. The Hong Kong hotel bill claimed in this action was claimed for and paid when this invoice was paid. Further the reference to fees of $10,000 is inconsistent. Bryer was cross‑examined on this at T300 et seq. He appeared to suggest that the fees were not personal fees at all but amounted to a figure that was the total of fees he paid to other parties. It was very difficult to follow and quite frankly when Bryer was giving his evidence he was less than confident on the point.
Apart from this invoice, according to Bryer, Newshore rendered no other interim invoices in relation to its brief during the period in which he says it was engaged being 20 May to 30 Jul 2000. This, in spite of working 100 hours per week and paying its own hotel, travel and other expenses.
In my view the issues arising out of this invoice go further than a concern about double charging. They suggest a systemic unreliability in Newshore's accounting which causes me disquiet about the reliability of Bryer's assertions concerning the number of hours he worked for each of which he seeks the sum of $250.

The invoice the subject of this action – Exhibit A224

On about 8 August 2000 Bryer became aware that Mostert had resigned from his position as Chief Financial Officer and Head of Australian Operations for DRD. He became aware of this from a report in the newspaper (Exhibit 5 West Australian 5 August 2000). Immediately, Bryer rendered an invoice dated 8 August 2000 to DRD which is Exhibit A224. This is the invoice relating to the claim and it should be set out in full as follows:
"Please find enclosed our invoice for the period; 20 May 2000 to 30 July 2000. Invoice No 08082000 rmb.drd/3.
Arranging appointment with Sun Hung Kai Group Hong Kong, negotiations, meetings throughout May and June.
Further negotiations with Allied Group Hong Kong, May and June.
Discussions, meetings and presentations in Sydney, May and June.
Hotel expenses, telephone, photocopying, meeting room hire, travel and transport out‑of‑pocket expenses.
Total for this period $175,600.
Further negotiations in Sydney and Hong Kong, July together with expenses
Total for this period $14,200 (GST included in this amount).
Total $189,800 (GST inc)."
This invoice was sent to the directors of DRD at its West Australian address, Level 4, The South Shore Centre, 83 The Esplanade, South Perth.
From entries on the copy of Exhibit A224, presumably kept by Bryer it seems that copies of the invoice were faxed, presumably to DRD, on 16 and 31 August 2000 and on two other occasions in September.
DRD through Ian Murray, who replaced Mostert as Chief Financial Officer and Finance Director, responded on 1 September 2000 and did so by reference to an invoice dated 31 August 2000. DRD sought details from Bryer enumerated in point form as:
·"Details of the terms of your mandate.
·A full explanation of the activities that you conducted.
·Details of under whose instructions you are acting.
·Copies of agreement/contracts.
·Detailed breakdown of the invoice into cost element."
Mr Murray suggested a meeting "so that you can explain the full terms etc of the services that you provided to DRD."
This facsimile letter drew a swift response from Newshore on 2 September 2000 being Exhibit A312‑313. It is plain from the letter that Bryer was very irritated by Mr Murray's request. In the fifth paragraph he states:
"Our Service Agreement with your company is a matter of record, as is our activity file, all of our reports together with a full file of correspondence have always been afforded to your Perth office and received by that office."
Bryer then states:
"At all times we have acted for officers of the company (DRD) at their request and within our prescribed mandate.
The various meetings and arrangements described in our invoice were all arranged within the prescribed guidelines and took place in the various venues also described.
A part of our brief was to introduce, arrange meetings and conduct negotiations with suitable institutional investors. This was for general investment into DRD as well as financiers and investors for the "dragon" project. All negotiations were carried out in company with officers of DRD. These investors are well known to us and through out own special relationship with these groups we were able to perform these duties."
Bryer then goes on to specify various places where meetings took place, presentations were made and negotiations conducted. He then identifies a number of officers of DRD namely Mike Prinsloo, Roger Kebble, Mostert and Alistair Banfield, with whom he had been dealing. Bryer then intimates that his contact with DRD's officers had reached a stage of intimate confidentiality about commercial matters and then winds up with the following four paragraphs:
"The facsimile sent by you suggests an explanation is required, we are at a loss to understand that terminology or indeed the entire tone of your communication.
We have incurred costs on behalf of the company and spent many hundreds of hours working on projects for the company. We have carried out all of our duties diligently, successfully and correctly.
As we have not been aware of you in any past dealings with the company, perhaps you may care to provide us with an explanation as to your questions.
Our account has been rendered."
Bryer copied this facsimile to Mr Julian Tanby Rajah who was DRD's financial controller in Perth.
Mr Murray responded by fax dated 11 September 2000 (Exhibit A315):
"I have requested Mr Tanby Rajah to check the Perth office files for all correspondence and notes of meetings between the parties, as referred to in your fax. If he cannot locate them he is to contact you to obtain copies.
I cannot comment on your mandate until I have seen the alleged correspondence.
I stress again that I need a detailed breakdown of your invoice into the component parts that you refer to.
The reason for the questions is that DRD does not pay invoices without a signed agreement/contract and all expenses need to be itemised and pre‑approved. Contracts in excess of certain amounts need DRD Board approval.
Until I receive all the requested information DRD cannot authorise the invoice for payment."
This letter was followed up by another letter from Mr Mark Wellesley‑Wood dated 28 September 2000 which is Exhibit 6A and addressed to Bryer. In this letter Mr Wellesley‑Wood informs Bryer that the Board of DRD is holding an inquiry and that he had been appointed as chairman of the special committee investigating the matter. He refers to a copy of the service agreement and makes some adverse comments about it. He terminates the agreement and then in the penultimate paragraph states as follows:
"With respect to your invoice dated 8 August 2000, I repeat that payment cannot be authorised unless and until the information requested in my fax dated September 11 2000 is provided."
Mr Wellesley‑Wood then refers to a concern that Bryer had been placing shares for DRD and then states:
"Additionally, it will also be necessary for DRD to sight verifying invoices for all related expenses."
"You have been contacted by Control Risks Group, investigators acting on behalf of DRD, and I require that you cooperate with them and answer their questions."
Bryer prepared a response dated 2 October 2000 which is Exhibit 6B, but it was apparently never sent. From references in that letter it can be seen that Newshore commenced proceedings in the Supreme Court pursuant to the Corporations Law making a statutory demand for payment.
It is interesting in Exhibit 6B, the unsent reply dated 2 October 2000, that Bryer describes his role as follows:
"Our role as reiterated was to introduce officers of DRD to interested parties for possible future investment in the company. All negotiations were carried out by officers of DRD." (My emphasis).
To a large extent the correspondence that passed between the parties at this time, to which I have made reference above, speaks for itself. None of the source documents, financial records and the like requested by DRD in the correspondence after 8 August were ever provided by Newshore or Bryer to DRD. At trial some of the documents relating to travel and accommodation expenses were put in evidence but that was the extent of it.
In his evidence Bryer alleged, as I have indicated, that he worked for 64 days during the claimed period between 20 May 2000 and 30 July 2000. In other words he worked for 64 of 71 days. He alleged that he was working 14 and sometimes 18 hour days at $250 per hour.
Bryer asserted that Newshore's account for the period was in reality some $224,000. He said however that he sent an account for only $189,800, some $35,200 less (giving a 15.6 per cent discount). He said this was in consideration of "prompt payment".
On any view this was a generous discount. It is very surprising, given what he says about it, that there was no reference to Newshore's generosity on the face of its invoice Exhibit A224.
Furthermore the invoice is sent, and the discount given, in circumstances where Bryer knew the men with whom he had been dealing, namely Mostert and Stratton, were no longer with the company. I also note that nowhere in its contemporaneous and subsequent correspondence does Newshore mention anything about having given a discount.
In its form and substance, the invoice A224 has striking similarities with the interim invoice rendered to DRD dated 20 June 2000 relating to work with the Sun Hung Kai Group in Hong Kong. (A380/A381 previously discussed). It is difficult to reconcile these two invoices and the amounts claimed, bearing in mind the earlier invoice was paid.
Looking more closely at Invoice Exhibit A224 its structure seems to me to be quite curious. There is no means of knowing how the fee is computed. There are generalised assertions relating to work allegedly completed in May and June and then the total for the period, which includes all expenses apparently, and also obviously fees, is $175,600.
There is then a claim for only $14,200 for July being a month in which Newshore alleges that it was engaged full‑time in pursuit of DRD's interests.
It is not possible to reconcile Newshore's assertion that charges were rendered to DRD on the basis of days worked at $3,500 per day for July (14 hours per day at $250 per hour). The point was taken by counsel for DRD in final submissions in an analysis of amounts claimed for July. It was suggested that for the month of July, assuming only three days were taken off, this left 27 working days at $3,500 per day equals $94,500. Adding that to the claim for expenses spelt out in Exhibit A227, which might be in the region of $6,800 or so, and it can be seen the sum of approximately $101,000 should be claimed for July. Yet in Exhibit A224 only $14,200 is claimed.
Looking at it from another angle, given there were allegedly 11 days in May and 30 days in June worked, this amounts to 41 days. For this period the invoice reflects a charge of $175,600. Even assuming Bryer worked every day of the 41 days this amounts to $4,283 per day which, at $250 per hour, gives 17.1 hours per day worked for every one of the 41 days. That is clearly absurd.
Alternatively $175,600 divided by $3,500 (daily rate) equals 50.2 days. The claim for $175,600 for May/June is inherently implausible at the hours and rate asserted by Bryer.
I am again left with a feeling of disquiet about Bryer's assertions that he has completed the hours of work he states. Newshore's fees seem exorbitant, its claim exaggerated. What Bryer actually did is difficult to know. I would accept however that he did go to the places he says he did and expended some energies on behalf of DRD but as to how much remains a mystery.

The previous consultancy services ‑ $247,000 paid. Invoice Exhibit A91

Because of the paucity of documentation in key areas in the case, the reliance by Newshore upon oral agreements and reporting, and the fact that Bryer's corroborative witness, Mostert, is of suspect independence, more than usual swings upon the assessment of Bryer, Newshore's principal witness.
In putting its case, Newshore relies on prior concluded dealings with DRD and seeks to incorporate certain aspects of those dealings by reference. In adopting this strategy the prior dealings become available for analysis for any legitimate forensic purpose including the inquiry as to the credit of witnesses.
In its case based upon an agreement in May 2000 alleged to be partly oral, partly written and partly to be implied, as counsel described in his submissions, Newshore relies upon its previous business association with DRD in the period from about August 1999 until 18 May 2000. Newshore points to this prior association both in support of its assertion that Mostert had authority to bind DRD and in relation to the methods and practices adopted by Newshore and DRD in their business dealings. Newshore asserts the earlier dealings were characterised by a lack of formal documentation, a paucity of invoice detail, and a casual if not informal working relationship. Thus, according to Newshore, there is no significance in the fact that those factors were a feature of the dealings upon which Newshore now sues.
Given the reliance by Newshore upon the earlier dealings it is appropriate that they be carefully examined. These dealings, described as relating to a "consultancy" assignment, are pleaded in pars 3‑7 inclusive of the statement of claim.
Basically, as I have indicated, Newshore says that it conducted fruitful business with DRD between August 1999 and May 2000, for which it was paid the sum of $247,000 by DRD Australia at DRD's request. As specified in the particulars:
"The consultancy services were to assist in the stability of DRD's share market price by Bryer making personal representations as to the financial position and prospects of DRD to various persons in the business and financial markets, including brokers, fund managers, traders and large private buyers, in Australia, the Republic of South Africa, the United States of America, Hong Kong, Italy, France and the United Kingdom."
As with the alleged agreement the subject of this action, the alleged consultancy assignment was said to have been agreed orally between Bryer on behalf of Newshore and Mostert on behalf of DRD. According to Bryer there was an express oral term that he would "frequently report orally" to Mostert as to progress "in stabilising the DRD share price" (par 4 statement of claim).
Paragraphs 5, 6 and 7 of the statement of claim are as follows:
"5.Between September of 1999 and April of 2000 Newshore, through Bryer, provided services pursuant to the consultancy assignment and reported frequently to DRD, through Mostert.
6.It was a further express oral term of the consultancy assignment that Newshore would render its accounts to DRD for provision of the consultancy services in a simplified form and that those accounts would be paid promptly.
7.Pursuant to the express oral term pleaded in par 6 on 10 April 2000 Newshore rendered an account to DRD for the provision of the consultancy services between September 1999 and April 2000 in the sum of $247,000 and on 14 April 2000 DRD paid that sum to Newshore in satisfaction of the Newshore account."
In par 7 of the amended defence DRD admits receipt of the invoice from Newshore dated 10 April 2000 in the sum of $247,000 (Exhibit A91). Further DRD admits that "on or about 2000" Mostert caused "DRD Australasia Pty Ltd on behalf of DRD" to pay $247,000 to Newshore in payment of that invoice.
Thus it is not disputed that Newshore rendered an invoice in the said sum and that the sum was paid on behalf of DRD. DRD says nothing further about the transaction in its defence save that it denies the other allegations pleaded in relation to it.
Invoice Exhibit A91 was in a simplified form as follows:
"Re public relations and market research (group)
Public relations and market research on an International (sic) basis – all markets
Including Europe and US. Liaison and provision of information major private clients.
Period September 1999 to April 10 2000.
Total…$247,000.
This is to confirm our acceptance of payment of this account in the form of Durban Roodepoort Deep Limited shares to the equivalent value of Aud.$247,000."

In spite of the reference in that invoice to Newshore accepting shares to the value of $247,000, Newshore was paid in cash which was deposited into its account on 14 April 2000 (Exhibit A93 bank statement).
In his evidence about what agreement was reached concerning fees for these "consultancy services" Bryer said, at T144:
"After much discussion it was decided that a figure of roughly $100,000 per month would be the adequate remuneration for it plus any expenses that occurred as and when they occurred. That was reached because my first estimate had been an amount of $400,000 to do the job. That was rejected by Mr Mostert as being too high. He explained to me that the same estimate that he had received from a quite large firm to do the same job was roughly double that but he thought that as I am a single operator it would be best to be a more modest price, so we struck the arrangement of $100,000 per month on the days that I actually worked plus the expenses." (sic)
Bryer asserted that Newshore's account in the sum of $247,000 was calculated upon the basis of Bryer's agreed charge‑out rate at $100,000 per month. There was no supporting documentation concerning the calculation of those fees. There were no invoices or other documents relating to expenses. How Bryer came to calculate his fees in the sum of $247,000, apart from what I have stated, is a mystery save for the oblique reference in Exhibit 4A below.
There is some concern about whether the amount claimed was ever indeed intended to represent a calculation based upon a rate of remuneration and time spent, such as Newshore suggests. In cross‑examination Bryer's attention was drawn to Exhibits 4A, B and C. Exhibit 4A is a copy of a letter dated 5 April 2000 from a company known as Biltrad Global Investment Corporation Pty Ltd ("Biltrad") to a company known as Redbay Investments Pty Ltd ("Redbay"). Redbay is a company controlled by Bryer. The letter is in the following terms:
"This letter is to acknowledge our acceptance of your offer of cash consideration in lieu of transfer of 125,000 Durban Roodepoort Deep Limited ADR.
We agree to accept US150,000 or in preference the Australian dollar equivalent; based on current cross rates at .607 cents this equals Aud $247,000 payable to our account, which details are here."
There is then set out Biltrad's banking details and thereafter appears the paragraph:
"The payment of the amount detailed here is a final payment and we acknowledge that there are no other amounts or matters outstanding."
Exhibit 4B is a copy of a facsimile message sent by Bryer on behalf of Newshore to Mr John Stratton who was the Australian agent for DRD. It is dated 14 April 2000. It states:
"Dear John,
Please find our banking information as requested."
The banking details then appear and then it says:
"We further confirm that the amount of $247,000 was paid out on 5 April 2000 to BGIC – these funds were paid from our other account in the name of Redbay Investments Pty Ltd which details are…"
And then the banking details are given. BGIC is obviously Biltrad Global Investment Corporation.
In cross‑examination Bryer was asked whether he caused Redbay to pay $247,000 to Biltrad. He said "No". (T254). Upon being shown Exhibit 4B Bryer was asked whether Redbay had paid the $247,000 to Biltrad and he again said "No". He was then asked:
"So when you said to Mr Stratton that it had been paid out you meant what? ‑‑‑ and Bryer answered – It wasn't paid. I don't know what it means.
You just told Mr Stratton that it had?‑‑‑I told him it had on 5 April. I don't recall why. But it wasn't paid."
And further:
"So you told Mr Stratton on 14 April that you had paid out $247,000 from Redbay to Biltrad Global Investment Corporation when in fact you say you had not paid that payment?‑‑‑I had not paid it No."
Bryer's attention was then taken to Exhibit A91 which is the invoice for $247,000 to which I have already made reference and in particular his attention was drawn to the last paragraph which I repeat states:
"This is to confirm our acceptance of payment of this account in the form of Durban Roodepoort Deep Limited shares to the equivalent value of Aud $247,000."
Bryer was asked the question:
"Isn't that because what you were intending to do was to pass those shares to Biltrad?‑‑‑No."
The transaction that occurred between Newshore and DRD that resulted in Newshore being paid $247,000 on 14 April 2000, being about a month before the agreement the subject of this litigation was said to have been struck, affords very questionable support for Newshore's case. Apart from the curious references in the surrounding documents to which I have referred, I am troubled by the lack of supporting documentation for that claim. Although an order was made that Newshore produce financial documents relevant to the matter, for example ledgers or financial statements, the company has failed to do so. This gave rise to an issue that is dealt with later in these Reasons.
Furthermore, it seems to me to be surprising that there is no documentation relating to the alleged agreement to provide the consultancy services, given the quantum of fees purportedly paid for them. Yet DRD through its Australian subsidiary and Mostert did indeed pay on Newshore's invoice.
In my view this prior transaction may afford some basis for an argument about Newshore believing Mostert had authority from DRD to authorise payment and to contract but it really does not assist me in much else. Save for the fact that it is a precedent for the charging of handsome fees on scant documentation I am not sure what else to make of it. Indeed references in the surrounding documentation cause me some concern about relying upon those parts of Bryer's oral testimony that is unsupported by documents.

The two invoices for $63,500 Exhibits 1, 2 and 3

A number of other matters were put to Bryer in cross‑examination that seem to me to raise similar questions to those relating to the payment of the $247,000 on 14 April 2000. Prior to that date but during the relevant period Newshore had rendered invoices to DRD on two other occasions and those invoices had been paid. These payments again raise questions in my mind about Bryer's credit as a witness and also the reliability, if not validity, of his system of charging for his services.
It is to be noted that Exhibit A91, the invoice for the sum of $247,000, relates to a period from September 1999 to April 10 2000 and refers to "public relations and market research on an international basis". As I have mentioned this invoice was paid on 14 April 2000.
Exhibit 1 is an invoice dated 16 February 2000 rendered by Newshore to DRD in the sum of $63,500. That sum was paid to Newshore on that invoice on 10 March 2000 (Exhibit A92). This invoice purports to relate to "work done concerning a proposed loan from Compagnia Centro Italia Cauzioni US$200,000,000". The period for which the invoice is said to relate is from 26 January 2000 to 16 February 2000. In the body of the invoice it states:
"Travel to Rome Italy 14 days. Meetings all parties, scheduling, preparation of reports, rearrangement of assets statements, attendance at two meetings of the Board, negotiations with all parties. Re‑submission of proposal. Negotiations to increase guarantee. Liaison with Ministry of Treasury. Documentation of additional assets, liaison with valuers.
All out‑of‑pocket expenses including translation services of further provision of background information and information packages, general translation."
This invoice was sent by facsimile to Stratton on behalf of DRD on 16 February 2000 – Exhibit 2.
On 10 April 2000 another facsimile was sent to DRD, this time care of a secretary, which states:
"Please find copy of the invoice required, as promised, the original has been sent to you today by mail." (Exhibit 3)
This facsimile was sent by Bryer. Enclosed with the facsimile is a copy of an account dated 21 March 2000 again referring to a proposed loan from Compagnia Centro Italia Cauzioni US$200,000,000 and in the identical sum of $63,500.
This invoice was also paid to Newshore by DRD and deposited on 21 March 2000 (Exhibit A92), being the date of the invoice. Yet the copy of the invoice is being sent to DRD some 20 days later, being on 10 April 2000 (Exhibit 3).
The period purportedly covered by this invoice is 17 February 2000 to 7 April 2000 inclusive. This is some 16 days after the date of the invoice; in other words it appears to be an invoice for future services.
The work charged for is described as:
"Finalisation and issue of guarantee, translation and additional attachments in relation to guarantee liaison with reinsurers, documentation.
Forwarding of guarantee and attachments together with appendix and approval.
All out‑of‑pocket expenses and including our fee."
It is to be noted that the two invoices, Exhibit 1 and Exhibit 3, on their face appear to cover the period 26 January 2000 to 16 February 2000 and then 17 February 2000 to 7 April 2000 respectively. The invoices refer to the same project or assignment. The work descriptions vary. The amount claimed is identical.
Exhibit 21 is the bundle of documents, such as there are, held by DRD that relate to these payments. The first two pages are entitled "payment voucher". The first payment voucher being p 1 refers to the payment of the invoice Exhibit 1 in the sum of $63,500. In the comments section of the document the following appears:
"Two cheques were sent to Roger Bryer. The first one being cheque No 400099 and the second one 400104. They were for the same invoice."
Beneath that appears the handwritten notation "New invoice being sent for this cheque."
The second document, being another payment voucher, relates to the payment of the second invoice.
In his evidence at T207 and following Bryer explained that in February of 2000 he travelled to Rome where he met Stratton and participated in meetings "to arrange a $200,000,000 facility for DRD" but which did not involve the participation of any director of DRD. Bryer's attention was drawn to Exhibit 1 which is the invoice dated 16 February for $63,500 and at the same time Exhibit A225 (which is also Exhibit 3) which is the second invoice dated 21 March 2000 again for the sum of $63,500, both of which were paid (Exhibit A92).
Bryer's attention was then drawn to the two payments and to his evidence the previous day that the payment of invoice Exhibit A225, (the second invoice) was identified as being paid and credited to Newshore's account on 21 March 2000. When asked the question "to what does the $63,500 relate?" (being the deposit on 10 March), the witness replied:
"The payment of one of these invoices because one's signed and one is not."
There was some confusion in the exchange between counsel and Bryer. At T215.1 he was asked whether the first credit on 10 March 2000 related to the first invoice dated 16 February and he replied:
"Presumably it does. I can't recall at the moment. But those two invoices and those two payments relate to those two invoices."
It was then put to him that the credit on 10 March must relate to the invoice that was identified as Exhibit 1 to which he agreed. However Bryer seemed troubled by the fact that the second invoice was signed yet the first invoice was not signed. However he conceded that he had been paid on each of the invoices in two sums of $63,500 but he maintained that:
"…I don't know why you've got an unsigned copy. But the answer is that I have been paid for my services.
In relation to each of these invoices?‑‑‑Yes.
At T216 Bryer was asked:
"Do you recall the circumstances in which these two invoices…were drawn?‑‑‑Yes. I originated – sorry, I was given an assignment to liaise and arrange a $200,000,000 loan through this company…
…Can you tell me the circumstances in which you came to render the accounts? So how was it that the documents were actually created?‑‑‑To create my invoice.
Yes why did you create the invoice?‑‑‑So that I could be paid and it split into two parts because there are two separate things happening, not one.
I see so there were two separate parts of the service?‑‑‑Yes.
Therefore there are two separate invoices?‑‑‑Yes."
Bryer was cross‑examined about his procedures in sending the two invoices to Mr Stratton and Mostert and the possibility that the second invoice was sent only following a request for a copy of it made by K Risley, a female employee of DRD. Bryer was asked at T220:
"Did you send that document to Ms Risley as a result of a request of her for an invoice?‑‑‑I don't know why I sent it but its obviously a copy of an invoice I had previously sent that she couldn't find perhaps.
So if I say that the circumstances were that you were paid or Newshore was paid in relation to the invoice before it was actually received, you would disagree with that would you?‑‑‑Yes of course."
At the end of the cross‑examination of Bryer, which followed the resumption of this trial twelve months later, at T352‑3, I referred Bryer to Exhibit 3, the second invoice and at T353 put the following question to him:
"In its terms it refers to a period from 17 February 2000 to 7 April 2000 and by reference to document A92 it can be seen it was paid – unless I'm missing something. A cheque presumably for that amount, cheque or cash for that amount, went into Newshore's account with the National Bank on that day, 21 March 2000. So my query is how can that be or how did that happen given the invoice refers to a period up to 7 April; in other words, 17 days in the future. I just can't quite follow – can you remember anything about it?‑‑‑Yes your Honour.
What is the time – it was paid; so there we have an invoice being paid, $63,500 being paid, on 21 March for a period which still hasn't finished?‑‑‑Yes I see what you're saying. I think that that is a mistake, the April is a mistake.
That's the reference on the invoice A225 or Exhibit 3?‑‑‑Yes."
At that point counsel for DRD, Mr Martino, got to his feet and gave notice that:
"It will certainly be our submission in closing that this invoice on its face is false. Its for exactly the same amount as the earlier invoice. It was paid on 21 May (sic March) before it was sent by Newshore…"
Counsel for Newshore declined the implicit invitation to re‑examine Bryer on this matter.
It is notable that so far the evidence establishes Newshore received from DRD, at least three cheques between 10 March 2000 and 14 April 2000 totalling some $374,000 which amounted to fees rendered for work of various kinds done by Bryer from September 1999 to April 2000 or about eight months of work.
Bryer was cross‑examined about this at T222 and T223 and I reproduce the exchanges hereunder:
"If I can go back to September – August 1999…the position is as I understand your evidence, that your primary task under what you say is the consultancy assignment was the maintenance of DRD share price internationally?‑‑‑That is correct.
I understand you to have said in your evidence that there were two other distinct parts of the work as well. That related to travelling to Rome?‑‑‑Yes.
On the $200,000,000 loan is that right?‑‑‑Yes.
And then as a distinct part of work in relation to other bits and pieces if I can call it that that relate to that issue?‑‑‑Yes.
So as I understand your evidence there are really parts to the service that was provided?‑‑‑At least three. There's actually more.
Well you've rendered three invoices in the period. Do you say that there is work that hasn't been invoiced?‑‑‑Ongoing work such as public relations work came gratis, if you like, but there was many times that I spent addressing the share price of Durban Roodepoort Deep that I didn't render a separate individual invoice for.
But as I understand your evidence, once you got to – after 21 May of 2000, that's when you say Mr Mostert signed the service agreement?‑‑‑Yes.
The work after that point in time fell into a completely distinct category from the work that was undertaken pursuant to what you call the consultancy agreement?‑‑‑Yes, because it was a new assignment just prior to that service agreement which was to explore the possibility of a cornerstone investor. That had not been raised before Mr Mostert told me about it.
And you say that that arises as a result of some discussions that you had with Mr Mostert in – I think your evidence was early May 2000?‑‑‑Yes."
The documentation raised by Bryer relating to the two invoices each for the sum of $63,500 seems to me to raise questions which have not been adequately answered. It could not be said that there is false invoicing but I have the very strong suspicion that Newshore has been paid twice for the same work. It may be that the payment was as a result of some error in DRD's procedures which, after the event, Bryer on behalf of Newshore has either failed to notice or deliberately not sought to rectify. I could not say. However I am left with some disquiet about the matter and, perhaps more significantly, about the reliability of Bryer's evidence in some respects.

The payment of $250,000 to Vista Blue Limited

Further documents put to Bryer in cross‑examination related to invoices rendered to DRD in September and November 1999 on behalf of Vista Blue Limited, a company whose office was at 7 High Street, Fremantle and whose facsimile number was 9450 3770. Included amongst the documents was a copy of a facsimile message under the letterhead "Millennium Exposition of Wonders" which is also an entity which operates from 7 High Street, Fremantle and also has the same facsimile number. At the foot of the document with the Millennium heading appears the following:
"Millennium Exposition of Wonders and Design by Camelot are wholly owned trading entities of Redbay Investments Pty Ltd."
I note that from Newshore's letterhead it also utilises the same facsimile number 94503770."
The bundle of documents shown to Bryer became Exhibit 12A‑F inclusive.
Exhibit 12A is a copy of a letter under Vista Blue letterhead dated 10 September 1999 addressed to Mostert, Chief Financial Officer of DRD. It is signed by Bryer. The letter states:
"Further to our discussions, please find outlined here a suggested itinerary and plan of purpose for our public relations activities proposed.
Our activities to occur over a 10 day period commencing 20 September 1999.
Florida USA (West Palm Beach) and other centres – New York – London. Expected meetings 56.
Proposed total fee; five per cent of achieved target less any previously paid fees.
Suggested total target 35 million shares. US$1.80‑US$2.10 with an incentive of a further 1% for stock achieved over US2.10.
Method of payment; all fees are paid to this company at Smith Barney on a progressive basis. Account details are attached.
Preliminary fee; US$400,000.
Expenses; based on US$700 per day including hotel and telephone at 10 days = US$7,000.
Airline tickets Perth‑Florida‑New York‑London‑Perth.
We look forward to a future mutually rewarding and successful association."
I note that the reference to a target of 35,000,000 shares is the same number of shares as mentioned by Mostert in a document attached to a facsimile sent to Bryer on 28 June 2000 which is Exhibit A132 and A133. This document is described as a financial model "to reflect the mechanism of the preference share issue and redemption" and there is reference in it to preference shares issued (35,000,000 at $1 each).
I also note the reference in Exhibit 12A by Bryer to a preliminary fee of US$400,000. I note that Bryer, in his evidence at T144, when referring to consultancy services previously provided by Newshore (not Vista Blue), and in giving evidence about how his fee was calculated stated that his "first estimate had been an amount of $400,000 to do the job. That was rejected by Mostert as being too high."
These references do not seem to me to be greatly significant in themselves save that they suggest a close relationship in operations between Vista Blue Limited and Newshore through Bryer. Thus any moneys that Vista Blue received from DRD as fees for work done during the relevant period by Bryer seem to me to become relevant.

Counsel for the plaintiff at T602 expressed the view that there was no time limit provided for the provision of the document (even though the order was made during the trial and whilst the plaintiff's principal witness was under cross‑examination) and that therefore "it was not an order or direction that required an event to happen by a time". He then said that there was no refusal to give discovery and he went on to argue that there was no prejudice in any event. In his submissions counsel made mention of the case of British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197 and wound up by saying that the failure of the plaintiff being able to produce any documentation was irrelevant.
Although I do not have difficulty accepting the observations made by Mr Martino, generally, I am not prepared to take the view he urges and, upon the basis of an alleged refusal to give discovery, order judgment against the plaintiff. I have already expressed my views about the lack of supporting documents generally and those views have been important in my conclusions about Mr Bryer's reliability as a witness on the issues of work done and hours spent and the like. In my view Bryer would produce these documents if he was able. The fact that he has not been able to do so strongly suggests that they do not exist even though he said they did. His lack of compliance with the order reinforces my views about his reliability as a witness.

Failure to call former office holders of the defendant namely Messrs Kebble, Prinsloo, Banfield, etc

Throughout the relevant period, according to Bryer, he dealt with the defendant through Mostert and, sometimes himself but usually through Mostert he dealt specifically, according to his evidence, with gentlemen named, Kebble, Prinsloo, Banfield, etc.
There was repeated reference in evidence to those gentlemen being aware of what it was the plaintiff was doing, in authorising Mostert to engage the plaintiff, and a whole range of other related matters.
Yet none of these gentlemen were called to give evidence by either side.
The question of whether Mostert had authority was raised by the defendant in its defence. It was denied that Mostert had authority. The evidential onus would therefore seem to fall upon the defendant. The defendant did not call the abovementioned witnesses and other things being equal it might be said that the reason lies in the fact that those witnesses could not assist the defendant on the issue. As I have already found that issue against the defendant there seems nothing further that needs be said.
It was the plaintiff's case, as I have repeatedly said, that it was commissioned to do work, it had specific tasks and performed work for lengthy periods of time and the like. It was the plaintiff's case that it dealt with Kebble, Prinsloo and Banfield. Yet, the plaintiff did not call any of those witnesses. One might then also take the view that those witnesses would have been called if they could have assisted the plaintiff in its case.
Although it is surprising that neither party called these witnesses, I do not think the fact that they were not called is of significance in the case on any undecided issue. Indeed it would seem that the particular issues in respect of which the non‑calling of those witnesses might be relevant, have already been decided appropriately.

Findings on evidence of Bryer as to fees and hours

Having carefully considered the evidence and reviewed detailed notes I took during the hearing of this matter, which lasted seven days over a period of 12 months, I am not satisfied on the balance of probabilities that it was agreed that Newshore would be paid at any particular daily or hourly rate. Further I do not accept the evidence that Mr Bryer worked the number of hours he says he did. I am concerned that the number of hours claimed to have been worked is exaggerated and that Newshore and Vista Blue may have already been paid for some of the hours now claimed by Newshore.
On balance, I think that Newshore is entitled to a judgment but in attempting to work out what hours Bryer worked, which have not been paid for, the evidence is unhelpful. I am left with the choice of either dismissing Newshore's claim for want of evidence or attempting to arrive at a figure based on a reasonable approach, doing the best I can in the circumstances. Not without some hesitation I shall attempt to arrive at a reasonable figure.

Rate of remuneration

On p 7 of these reasons I have set out the contents of a document called "Service Agreement" (Exhibit A119) which on the plaintiff's case is the "partly written" part of the agreement. The only reference to remuneration is in the fourth paragraph which says:
"Notwithstanding the final conclusion of all such negotiations it is agreed herein that the company will pay to Newshore all of the expenses incurred by Newshore together with fees based on time spent in furthering such negotiations."
I have already reviewed the evidence of both Bryer and Mostert as to how the plaintiff's remuneration was to be calculated and it is clear that the evidence is inconsistent. By reason of the findings I have made about the quality of the evidence adduced on behalf of the plaintiff, as I have indicated, I am not satisfied that the agreed rate was either $100,000 per month, $25,000 per week, $3,500 per day, or $250 per hour.
Apart from invoices which were silent on the point, there was no clear documentary support for any particular rate of remuneration or method of calculation of fees. As I have mentioned there was an absence of records of time spent. Furthermore, Mostert, who was called to give evidence by the plaintiff, was not asked in chief and gave no evidence about hours spent by Bryer.
In the absence of any conclusion about what was agreed concerning rates of remuneration I then turn to the question of whether it can be said that there was an implied term of the agreement that the plaintiff would be paid reasonable remuneration.
In my view there was an implied term of this agreement that the plaintiff would be paid reasonable remuneration for services provided. Such a term is essential to give business efficacy to the agreement. I do not think any further discussion of the law is necessary.
However, I have considerable difficulty in identifying what evidence can be relied upon in order to assess what would be a reasonable rate of remuneration. The plaintiff asserts that a reasonable rate of remuneration is $3,500 per day. It was argued that that rate was the basis of calculation of fees rendered in previous invoices in respect of a different agreement, for allegedly similar services, which invoices were paid by the defendant to the plaintiff.
For the reasons that will be obvious in these remarks I do not accept that argument. It is not clear from any previous invoices that that was the rate charged and paid. I do not accept Bryer's evidence in relation to that issue given it is unsupported by any other evidence apart from, perhaps, Mostert's evidence.
Bryer's evidence was that $3,500 per day was based upon a 14 hour day at $250 per hour.
The sum of $250 per hour, in isolation, would not seem to be excessive. The assertion that a person worked for 14 hours a day for a brief period may be plausible, it seems to me, but I do not accept that the plaintiff worked for 64 days out of 72 days, for 14 hours a day (or, according to Mr Bryer, up to 18 hours a day). I think defence counsel's observations in closing about this issue have some merit where at T525 he said:
"Your Honour it also highlights the inherent implausibility of the plaintiff's claim.
There's the proposition that a great deal had to be accomplished in a very short period of time but no evidence – no satisfactory evidence was capable of being led to identify what that imperative was. The purpose of the retainer is said to be to raise US$40,000,000 or up to $75,000,000 for the purposes of the dragon project but the only evidence given of any imperative in terms of things being done in a short period of time there's evidence that DRD needed to refinance a debt due to Rothschild and that evidence was incredibly or clearly implausible.
It was evidence to the effect that there were circumstances which if released to the market would have had a significant negative impact on the share price of DRD and an expectation that the officers of DRD would not release that information to the market. Even in relation to a debt to Rothschild in the sum of some $10,000,000 to $12,000,000 the evidence given by Mr Wellesley‑Wood and Mr Murray was that there was no – first of all, had there been any circumstances which could not duly affect the price of DRD shares they would have released that information to the market but secondly there was no prospect of DRD not being able to repay that money and it was repaid and significantly, your Honour, they were not cross‑examined on that evidence.
Similarly, Mr Wellesley‑Wood was not cross‑examined on his evidence that he had not received reports from Mr Mostert about Mr Bryer's activities. The glaringly improbable proposition that anyone would work on average 14 hours a day for 64 days over a 72 day period is a proposition which is clearly consistent with exaggeration and unreliability and inconsistent with evidence of a satisfactory nature being given and that tendency to exaggerate was apparent from the outset…"
And later, at T530:
"This is a case where not only are there no documents to support the work said to have been done, not only is there no time sheet recording what is said to have been done, not only is it the case that Mostert said that he essentially agreed with Mr Bryer's statement in his initial unsent facsimile – that his role was essentially as a facilitator and that he did not conduct negotiations, but the plaintiff has been unable to provide any clear or concise statement of the work said to be done but, instead, chooses to use very opaque and general terms such as 'modelling a suitable assignment to arrange the investment; modelling the type of instrument to be used, arranging the finalisation of an investment' and so on."
The Court is required to do its best to assess what would be a reasonable rate of remuneration and $250 per hour for a person who has the experience that Mr Bryer apparently has might, on the face of it, seem to be a reasonable rate. It was submitted on behalf of the plaintiff that:
"Generally a plaintiff is entitled to recover the market value of the services provided. Where services are provided by a professional they will usually be valued by reference to the commercial rate applicable to work of the type done by a person of the plaintiff's standing."
It was submitted that the Court should be able to have regard to the rate previously charged by the plaintiff and paid by the defendant.
As to that latter submission, given the views I have expressed concerning certain aspects of the previous payments made by the defendant, or its Australian "arm", I am not prepared to have regard to them as a basis for formulating a view about what is reasonable.
There is really very little if any evidence to assist me in this regard. Doing the best that I can, $250 per hour for an eight hour day is $2,000 per day, $10,000 per week and $500,000 per year excluding holidays. That would be a handsome annual income for a professional person, perhaps not being a leading Queen's Counsel or medical specialist. I find that $250 per hour would be a reasonable rate of remuneration.

The hours worked

It is the assessment of the number of hours that Mr Bryer worked between 20 May and the end of July that is the most difficult task. I do not accept his evidence that he worked the hours per day he claims over the days he claimed. Mostert does not support him except generally, and there is little other evidence upon which I can rely.
The only piece of evidence that provides an arguable basis upon which an assessment of hours, and indeed rates, could fairly be made comes from the plaintiff itself. It is the interim invoice discussed at p 12 et seq above; Exhibit A380 as expounded in Exhibit A381.
As I have previously noted, the interim invoice rendered by Newshore to DRD was for the period 10 May‑4 June 2000, being about 25 days. Allowing for weekends that period could be said to be about 20 working days.
For this period, Newshore claimed and was paid US$10,000 as fees, or about A$16,600 which, over the 20 day claimed period, averages at A$830 per day, or A$4,150 per week. That is how Newshore valued its services for a period prior to the period the subject of this action and overlapping some 15 days with the term of the alleged contract now sued upon.
Bryer in examination‑in‑chief on 18 December 2002 said the interim account was rendered because the work that he was doing had become very expensive (T195). He asserted the work charged was not the same as that being sued for. I do not accept that evidence for the reasons I have already explained and also because it is inconsistent with the terms of the invoice.
Bryer did not say he worked any harder or longer on his brief after 4 June. He did not really differentiate between his account of the extent of the work he did that culminated in the interim invoice and the work that culminated in the invoice on which Newshore sues. Indeed, Bryer suggested the invoice was not for his services at all!
In cross‑examination Bryer suggested the interim invoice only covered out‑of‑pocket expenses (T248). This flies in the face of the document. (See T300‑303). I have already said Bryer's evidence about the interim invoice and his efforts to explain away what the document states were unsatisfactory.

Assessment of fees due

In my view, $250 per hour would be a reasonable hourly rate for a person with the background and experience of Bryer, as I have already stated. Given the arithmetic suggested by the interim invoice and the average daily rate of $830, assuming $250 per hour, this amounts to three and one third hours work on average per day charged by Newshore and paid by DRD. I cannot see any reason to assume Bryer worked for longer per day, every day on average, on behalf of Newshore for DRD, from 5 June to 30 July. Assuming a five day week and an average of three and one third hours of work per day over the period amounts to a reasonable assessment in the circumstances. Thus, $830 per day, = $4,150 per week x 8 weeks (deducting for the overlap and accepting the assertions contained in par 25 of the defence) results in an assessment of $33,200.

Expenses

Newshore submitted that the expenses incurred pursuant to performance of the Services Agreement are contained in a schedule which became Exhibit A227.
As counsel candidly admitted during his final submissions at T607:
"We have difficulties with some of the items in this schedule."
As will appear, that was an understatement.
The interim invoice – Exhibit A380‑381, discussed above, was rendered for "work done during the period 10 May 2000 to 4 June 2000 inclusive. It refers to hotel accommodation Hong Kong dollars 9,916. It has references to "transport, meals…" US$4,405, to telephone and communication charges, of US$6,410, and to "fees" of US$10,000.
Referring to Exhibit A227 the first item relating to hotels, which is the second section, refers to accommodation at the JW Marriott in Hong Kong for two periods in May which in Hong Kong dollars (totalling Exhibits A113 and A128) equals $9,916. This is the sum referred to in the interim invoice which, indisputably, was paid. Bryer dealt with this at T288.
By inference the claims for airfares to Hong Kong in May would relate to the same period although they are not specified other than that they occurred in May. These items appear at the head of the list in Exhibit A227. They are not supported by any records or receipts whatsoever. They could well have been paid as part of the payment of the interim invoice.
I would not be prepared to make any allowance for airfares to Hong Kong because I think they could well have been paid already.
As for the trip to Sydney in July 2000 which was not paid by DRD I would be prepared to make allowance given there is no doubt Bryer went to Sydney and given it was not in a period covered by any other invoice. The other airfares were paid by DRD.
As to the claim for the Ritz Carlton in Sydney in July I would also be prepared to allow that although there was no receipt.
Photocopying, etc, results in a claim of $482. This is a mere estimate unsupported by documentation. I would not allow that.
Hertz Rentacar – given Bryer was in Sydney in July I would allow that at $585.32 although there are no receipts.
Private meeting room rental – there is no documentation whatsoever and I would not allow that.
Optus mobile accounts seem to me to be excessive. However, it is certainly plausible that there would have been some allowance for Bryer's personal mobile costs. I would allow that at $1,000.
Taxis, trains and ferries is unsupported by documentation. I would not allow that.K
The claim for away from home allowance of $300 per day for 32 days is unsubstantiated in any way. It is an estimate and I would not make any allowance for that.

Therefore I allow the following expenses:
1.        Qantas airfare Perth‑Sydney‑Perth July 2000         $1,616.34
2.        Ritz Carlton Sydney 11 July‑17 July 2000            $1,907.30
3.        Hertz Rent‑a‑Car Sydney 11 July‑17 July 2000     $   582.30
4.        Optus mobile telephone  $1,000.00
Total  $5,105.94
Thus the plaintiff is entitled to:
Fees  $33,200.00
Expenses  $ 5,105.00
Total  $38,305.00

Interest

Interest from 31 July 2000 to 31 March 2004 = 3 years and 7 months = 3.58 years x 6% x $38,305 = $8,227.91.
There will be judgment for the plaintiff in the sum of $46,532.91.